A Massive Mess of Forensics

12/26/2012 10:45 am ETUpdated
Feb 25, 2013

The FBI's crime lab was at one point reputed to be one of the most elite, well-run labs in the world. Not so much anymore. For the last year, the agency has been embroiled in a huge and growing scandal in which its crime lab technicians have been found to have vastly overstated the value and conclusiveness of forensic evidence in criminal cases. The breadth and seriousness of the problem have only come to light in the last year or so, although there have been warning signs going back to the 1990s. The number of convictions affected is in the thousands, possibly the tens of thousands.

In July, the Justice Department announced a nationwide review of all cases handled by the FBI Laboratory's hair and fibers unit before 2000 -- at least 21,000 cases -- to determine whether improper lab reports or testimony might have contributed to wrongful convictions.

But about three dozen FBI agents trained 600 to 1,000 state and local examiners to apply the same standards that have proved problematic.

None of the local cases is included in the federal review. As a result, legal experts say, although the federal inquiry is laudable, the number of flawed cases at the state and local levels could be even higher, and those are going uncorrected.

It would be difficult to overstate just how catastrophic this is. It's a scandal that strikes at the very heart of our democratic system of government, and it isn't getting nearly the attention it deserves. We're talking about one of the most basic functions of government -- the administration of justice. And we're talking about nationwide systemic failures in the way the government has been presenting scientific evidence in the courtroom going back 40 years, over tens of thousands of cases, all with the approval of the courts in which that evidence was presented.

Worse yet, the Justice Department had to be dragged kicking and screaming into conducting even the federal review. From the Washington Post, last April:

Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.

Officials started reviewing the cases in the 1990s after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials. Instead of releasing those findings, they made them available only to the prosecutors in the affected cases, according to documents and interviews with dozens of officials.

In addition, the Justice Department reviewed only a limited number of cases and focused on the work of one scientist at the FBI lab, despite warnings that problems were far more widespread and could affect potentially thousands of cases in federal, state and local courts.

As a result, hundreds of defendants nationwide remain in prison or on parole for crimes that might merit exoneration, a retrial or a retesting of evidence using DNA because FBI hair and fiber experts may have misidentified them as suspects.

Justice Department officials said that they met their legal and constitutional obligations when they learned of specific errors, that they alerted prosecutors and were not required to inform defendants directly.

I mean, think about that. Taxpayer-paid employees of the Justice Department had direct and exclusive knowledge that there may be hundreds of innocent people in prison, they knew that flawed forensics in these cases needed to be reviewed, and their justification for not doing more as these people continued to rot in prison was, Hey, we did the bare minimum required of us by law...

But even beyond the problematic ethical requirements, I'm having a hard time fathoming how no one on this task force felt morally compelled to go beyond those requirements -- to, you know, actually reach out to defense attorneys, or attempt to actually reach the convicts or their families. How in the world can you possess this sort of information, then still sleep at night, year after year, knowing that (a) the information obviously isn't reaching the people who have an incentive to actually put it to use, (b) you're one of the few people who could make that happen, and (c) because the information was only available to a select group of people, if you or one of your colleagues doesn't act, no one else will?

This is happening all over the country. As I noted in a piece for HuffPost last year, crime lab scandals have erupted in recent years. Scandals have plagued state crime labs "in North Carolina, California, Virginia, Illinois, Maryland, West Virginia and Mississippi; the city crime labs in Houston, Cleveland, Chicago, Omaha, Oklahoma City, Washington and San Francisco; the county lab in Nassau County, New York; and... the Army crime lab."

Public officials tend to be reluctant to admit to the scope of the problem because doing so would call thousands of convictions into question. Of course, that's exactly what should happen, but I think it's about more than that. When you're talking about thousands and thousands of possibly corrupted cases spread out over several decades; when you're talking about implicating not only crime labs and crime lab technicians, but prosecutors, judges, appeals courts that failed to pick up on the problem, and, frankly, the entire field of forensics -- well, now you're talking about implicating the criminal justice system itself. It all raises some profound, far-reaching questions that start to scratch at the notion of what justice means in America.

How is it that our courts have for decades now allowed the use of bad science to put citizens in prison -- or even to send them to their deaths? Why is it that junk science can so easily slip into the courtroom during a criminal trial, but when said science is later called into question -- or even shown to be complete nonsense -- it can be so difficult, sometimes impossible, for the people convicted by that science to get a new trial? Should the objective of a prosecutor be to seek justice, or to win convictions? Do crime labs exist to objectively test and analyze forensic evidence, or are they part of the prosecution's "team?"

How have we structured the incentives at crime labs, in prosecutors' offices, and at the Justice Department? Are prosecutors rewarded for seeking justice, or for racking up convictions? We know there are professional rewards for high-profile convictions and for high conviction rates. But are there professional sanctions for going too far to win convictions? Are those sanctions severe enough to offset the payoffs for getting convictions?

Perhaps we don't want the incentives to be perfectly balanced. Maybe we want to slightly nudge prosecutors toward seeking convictions, on the theory that they're counterbalanced by defense attorneys. But it's a discussion we ought to have. Right now, we aren't having it. Currently, not only does it appear that prosecutors are rarely sanctioned for bending or breaking the rules, the Justice Department won't even tell us what punishment or sanctions they get when they do. This isn't acceptable. The immense power afforded to federal prosecutors, the fact that they're on the public payroll, and the fact that their misconduct can and has resulted in putting innocent people in prison far outweighs any interest in protecting their professional privacy. Their successes in the courtroom can be championed in public and used to advance their careers. The public most certainly ought to be made aware of their transgressions.

But let's get back to the hard questions about crime labs. If a crime lab analyst comes up with results that could undermine a high-profile prosecution, is the analyst typically rewarded, potentially thwarting a pending injustice, or possibly punished for derailing a conviction? I've reported on cases in which crime lab technicians and medical examiners have been punished for testifying for the defense. And some in the forensics community tell me its still considered unethical for a forensic expert to take the initiative of calling a defense attorney if the analyst believes he has found exculpatory evidence that the prosecution is ignoring, or hasn't turned over to defense counsel. Crazier still, there are parts of the country where crime lab technicians report to prosecutors. Prosecutors conduct their performance reviews, determine who gets promoted and who gets a raise. Who thought this was a good idea?

There have been enough scandals now that we need to start talking about these issues as systemic failures, and no longer as individual incidents to be addressed and fixed on a case-by-case basis. And it's time to start considering more fundamental changes to how we test, analyze, and use forensic evidence in the courtroom, changes that may seem radical, but that would restructure the incentives of the key players here so that we reward people for moving cases toward just outcomes, not outcomes that serve political interests

The 2009 National Academy of Sciences report on forensics started that process. But it seems to have stalled. Maybe these latest revelations about the FBI lab will get the discussion going again.